Punish Sleep-Rape

Sexsomnia is simply a variant of sleepwalking, which affects 1 to 2% of adults. … The woman awoke to discover that her underwear had been removed and a glassy-eyed Luedecke was trying to rape her. She pushed him off, ran to the washroom, and returned to find him standing there bewildered. Luedeke, who had an established history of sleepwalking behaviors, was acquitted after [a] psychiatrist … testified … [that he] was in a dissociative state when the incident occurred and therefore he was not consciously aware of his actions. (more)

Should we punish ordinary rape severely yet entirely forgive sleep-rape? More generally, should we punish harms chosen by an unconscious mind much less severely than harms chosen by a conscious mind? I can see two arguments, but both fail I think.

The first argument says we should punish “intentional” harms more. Assume that law tries to encourage people to adopt efficient levels of care. Then note that purposely planning and carefully directing actions to create harm seems quite clearly far below an efficient level of care to prevent harm. Finally, conclude that it makes sense to punish planned harms more severely than harms which might more plausibly be accidental.

To conclude from this that unconscious acts should be forgiven, however, one must presume that unconscious mind harms are unplanned or are accidental side effects of other plans. Yet almost all conscious plans are first made unconsciously. So why should we presume unconscious acts are never planned?

The second argument divides a human mind into conscious and unconscious parts, and then complains that it is unfair to punish the conscious part for acts of the unconscious part, over which it might have had no control. Consider, however, an analogy with a married couple. When we punish a married person who has committed a crime, their spouse is usually punished as well. Fine and jail that take away resources from a criminal also take away resources from their spouse.

We are mostly ok with punishing spouses along with criminals. People choose their marriage partners, and have many opportunities to monitor and encourage good behavior from spouses. So punishing spouses gives them incentives to monitor and encourage well. But conscious minds also have opportunities to monitor and encourage associated unconscious minds. In fact, there are probably more such opportunities with a single person’s head than within a married couple. This suggests that we should thus punish conscious minds for associated unconscious actions at least as much as we effectively punish criminal spouses.

I wonder how our eagerness to excuse unconscious rule violations is related to our more general homo hypocritus eagerness to reserve possible excuses for our and allies’ future rule violations.

Added 11:30a: Like drunks, sleepwalkers seem somewhat incapacitated, so perhaps they should be excused from crimes to a similar degree as drunks. More data:

A sleepwalking adult usually has eyes wide open, although they may have a glassy or dazed appearance.  While they may move around somewhat clumsily, their arms are not outstretched. … Sleepwalking adults have been known to rearrange furniture, talk on the phone, email, eat, clean house, play a musical instrument, and many other routine tasks.  Sometimes they will perform rather bizarre actions, like urinating in a trashcan or removing all the knick-knacks from living room shelves and lining them up around the bathroom sink. … sleep walking adults have been known to get in the car and drive, sometimes for long distances.  Oftentimes these road trips have resulted in serious auto accidents.  There are many stories on record of sleepwalkers falling from second story windows or roofs, seriously injuring themselves, or even dying from the fall. … In some rare instances, somnabulists have walked out into the middle of a busy street, or stepped in front of an oncoming train … [or] committed murder and other serious crimes. (more)

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  • Mark

    Is punishment really an effective deterrent for unconscious transgressions, particularly those that happen infrequently?

    • Tyrrell_McAllister

      The threat of punishment might induce the conscious mind to take precautions that obstruct the unconscious mind’s ability to transgress.

      • That only works if the conscious person has reason to expect sleep rape to be a risk for them. Why would they? There are countless bizarre oddities that could happen to one; sleep rape is not common. The article says sleepwalking alone is extremely rare (~1%), and attempted rape is obviously even rarer – reading the article, while Luedecke had a history of sleepwalking, this was apparently the first time ever he had attempted rape. (Which is not surprising…)

        And it’s not clear how well one could prevent it. Here’s one excerpt Robin didn’t include:

        > After five years of waking up several nights a week with ejaculate mysteriously between his fingers, one 27-year-old was distressed to realize that he was a somnambulistic masturbator. The poor man broke two fingers when his nocturnal alter ego tore off the restraints he’d used to avoid moving in bed.


      • Tyrrell_McAllister

        That only works if the conscious person has reason to expect sleep rape to be a risk for them.

        People will take precautions against a highly improbable event when the costs of the event are high enough. Punishing sleep-rape might make costs high enough so that some people on the margin, who otherwise would have sleep-raped, instead figure out and take precautions that keep them from sleep-raping.

      • Anonymous

        People will take precautions against a highly improbable event when the costs of the event are high enough.

        Not really. You’re talking about a rational ideal that most people don’t correspond to.

        For instance, if I don’t do much in the cancer prevention department. If I ever get a bad case of cancer, my plan is pretty much to be shocked for a bit and then kill myself.

      • Tyrrell McAllister

        I don’t do much in the cancer prevention department. If I ever get a bad case of cancer, my plan is pretty much to be shocked for a bit and then kill myself.

        Evidently, you are not on the margin. But some people do take precautions against cancer, and even more would if the consequences of getting cancer were even worse (e.g., if it were contagious and would kill everyone you loved, too.)

  • wophugus

    But we can “punish” this guy. If this dude was negligent in not taking the proper precautions for someone with his condition then he can be sued in civil court and “punished” in a lot of the same ways a spouse is, IE economically. If he was taking the cost justified level of care and can’t be sued for negligence, why would we want him to be punished at all?

    • I agree with this. If you know that you have sleepwalked in the past, you should probably take precautions to prevent your behavior while asleep from affecting others and thus when your sleepwalking actions harm others, it could probably be handled by civil court.

    • Miley Cyrax

      Wait, are you guys saying people should be cognizant of cause and effect and be aware of the consequences of their actions and be held responsible for enacting precautions? I’m waiting for the Toronto slut-walkers to come in here to tell you two not to blame the victim here.


      still waiting…

      • wophugus

        No, I’m not making any sort of “should” statement at all. I’m saying that there is a tort of negligence and it has been used to sue people who did not take proper precautions to deal with a medical condition. Robin is saying that we should want to deter intentional harms more, but that we should still do something to promote the proper level of care in this situation. I’m saying that we, in fact, do do something to promote the proper level of care in this situation. We even do it in his preferred way: by compensating the victim rather than punishing the defendant. By definition, if this guy isn’t guilty of the tort of negligence then he was maintaining a reasonable level of care towards the victim.

        But you seem to be expanding the concept of negligence to say (I think? I don’t really know what a toronto slut walker is) that the victim’s contributory negligence should be a defense for the crime of rape, or something. But as Robin already pointed out, INTENTIONAL deviations from societal norms are a bit worse than negligent ones, so we’ve made a judgment call as a society that the victim’s negligence isn’t a defense for someone accused of an intentional tort or intentional crime. We’d rather punish rapists than encourage women to take precautions against rapists by letting rapists go free. That makes sense to me.

      • Miley Cyrax


        I was being sarcastic. I do think people should be expected to recognize actions and consequences. In this case, the guy knew he was a sexsomniac so should take steps to prevent himself from harming anyone. As for the slut-walkers, you can google it. Some feminists were protesting the fact that a Toronto police chief suggested that women wearing slutty clothing make them more prone to attract the attention of would-be rapists. The feminists were outraged that a man would dare suggest women be cognizant of cause and effect, and shrieked accusations of blaming the victim. As for another analogy, what if the Toronto police chief suggested that people should not leave their car doors unlocked if they don’t want to be stolen from? It would be a perfectly sensible suggestion.

  • Yet almost all conscious plans are first made unconsciously. So why should we presume unconscious acts are never planned?

    Why should we presume innocence at a trial? While there is evidence that plans are made subconsciously before conscious awareness, it does not follow that all unconscious acts are planned.

    I don’t sleepwalk, so I can’t speak with any authority on how sleepwalking episodes transpire (though I suspect that most sleepwalkers couldn’t either), but the thought of acting out behaviors while asleep is horrifying to me and I have a hard time imagining that such acts are planned.

    I do know that many of the dreams I have shortly before waking up have counterfactual or even nonsensical elements to them and I often find myself saying to myself, “wait, that’s not true” or “hey, that couldn’t have happened.” If I were actually move their body during such a dream, I would be clearly acting in a deluded state and I have a hard time justifying punishment for someone who acted in such a state.

    Honestly, your Homo hypocritus explanation seems pretty ridiculous to me. Do you remember any of your dreams? If you were acting them out as you slept, would you consider yourself culpable?

  • MattW

    Killing someone without malice or intent is punished. Manslaughter doesn’t line up exactly with unconscious rape, but I think it’s close enough for the same rules to apply. After he realizes that this is something he will always have, he should take precautions, like previous comments said.

    • Gil

      I agree.

  • Well, a large part of the punishment isn’t punitive against the individual, but signaling to others ‘don’t do this’. If a person is incapable of preventing an event, this part is ineffective. If the guy in the example had reasonable foreknowledge of his condition, it would be a significant difference to a first time occurrence.

    Second argument reminded me of this:

  • Matthew Fuller

    The notion that the unconscious mind is trainable is intuitive but hardly justifiable for a general principle. One could also train one’s sexuality, personality, intelligence…yet we notice little effect in all of these important features of the mind that largely depend on unconscious processes.

    It really needs to be taken on a case by case basis. Actual evidence wasn’t presented.

  • The analogy that tries to compare the relationship between conscious and unconscious to that between spouses is unconvincing, to say the least. And even if it was, it doesn’t work, since the law does not punish spouses for the crimes of their partner, except indirectly.

    I have no idea where you get evidence for the assertion that there is “eagerness to excuse unconscious rule violations”. The insanity defense, which is essentially the same thing, an “excuse” for an action because it was not produced by a functioning rational mind, is extremely unpopular, since it lets people like John Hinckley, Ted Kaczynski, and Dan White get away with murder, at least in the popular imagination.

    Yet another remarkably fact-free post from a blog devoted to objectivity. The law has a rich vocabulary for distinguishing different levels of intent and responsibility, maybe it would be wise to get a cursory familiarity with it before making stuff up.

  • Psychohistorian

    Seems like he could be convicted of something if he knew he had the condition and failed to take adequate precautions. Though “reckless rape” sounds like a 1L crim law exam question. He certainly could be held civilly liable if merely negligent.

    Generally, we punish where it’ll have a deterrent effect, and where there’s some level of moral blameworthiness. This lacks moral blameworthiness.

    Before you posit that homo hypocritus or signaling is the purpose behind something, think, “Would I enjoy living in a society with the proposed rule more or less than I do the current society?” If the answer is no, further explanation is likely unnecessary. Making this criminal, especially to the point of being equivalent to rape, would severely punish many people who couldn’t realistically have acted otherwise. It’d force innocent people to take expensive safety measures. And it probably wouldn’t prevent many such rapes.

  • Miley Cyrax

    I would venture that a good deal of feminists would love to punish “sleep rape” the same way as forcible rape (like where a random assailant rapes a female pedestrian passing by). The feminist umbrella for rape is rather large indeed. If a girl has a few drinks at a party and goes home with a frat boy? Rape. If a girl gives a few token “no’s” to feign innocence before spreading those legs? Rape. If a girl has a one night stand then regrets it when it’s clear she’s getting pumped and dumped? Clearly rape, and should be punished like forcible rape.

    • Anonymous

      Not as far as the law is concerned, and not as far as I am concerned. No means no, but yes means yes. These things should be treated as simply as this.

      As for the “token no’s”, I would treat them “denial of consent” unless there’s a clear “yes” later. That’s the only example where I see a rape accusation as justified. If you decide to penetrate the body of a person who said “no”, no matter how flirtatiously, it’s pretty much your fault.

      • anon

        I disagree. If token resistance could be reliably identified as such, we would disregard it. Since this is impossible (especially after-the-fact), it is best to take any kind of resistance into account, if only to deter the practice and encourage clearly stated consent.

      • Anonymous

        anon, yes, if we could reliably identify token resistance as such, it would be fine to disregard it. For instance, we may one day have wirelessly connected brain implants that allow software monitoring of mental states, subjective well-being etc. With such safeguards, people could engage in “rape play” that lacks explicit communications of consent except for the ability of either side to launch a telepathic rejection signal that is recognized by the software.

        People already have safe words in BDSM play, those are fine of course. My point was aimed at the old “she said no but she meant yes” excuse that rapists have used since the dawn of time.

  • Gil

    This guy should be in trouble for rape just as someone who falls asleep while driving and kills someone is trouble for manslaughter.

  • Ben

    The false assumption you’re making in dismissing the first argument is that sexsomnia equals an unconscious plan to commit rape. What if the man was dreaming that the woman was his wife, girlfriend or a former partner?

    His unconscious mind did “plan” to start having sex with the woman in some sense, but if it was mistaken about her identity, you can’t hold it culpable. It’s the same reason we wouldn’t punish someone with schizophrenia who attacks their next door neighbour under the sincere belief that they’re an evil alien.

    Since you dismiss the second argument, presumably we should also routinely scan people for fleeting, subconscious transgressive impulses and punish them for those?

  • Anonymous

    This is how I would like society to deal with individual responsibility:

    There are two options for every individual, sane or otherwise:

    1) Declare yourself insane and give up personal autonomy, including the right not to be detained (i.e. locked up) by society.
    2) Declare yourself not insane and be legally responsible for any and all actions you take, irrespective of your conditions and mental states. Of course, you can be detained for life when you commit severe enough crimes.

    This is what I would like society not to do:

    1) Accept insanity defenses of any kind without taking away autonomy of those who declare themselves insane.
    2) Declare people insane without their consent – even if they objectively are.

    E.g. detaining people to prevent them from committing suicide should be illegal. If insane people violate the rights of others, or are caught in the process of attempting to violate the rights of others, you treat them as ordinary criminals, except that they can declare themselves insane (which strips them of their autonomy for good).

    If you have a schizophrenic who attacks his neighbors because he believes they are aliens, that person should be treated as an ordinary criminal, unless he himself declares his insanity, in which case he loses his autonomy. (He will also lose his autonomy if he attacks people, obviously).

    On the other hand, people should have more freedoms rather than less. You should be able to buy or sell any drug that is labelled correctly. If you use them to violate the rights of others, you should be treated as a criminal. If you take the drugs to alter your own mind, and then violate the rights of others, the same logic should apply. If you take a drug that is labelled correctly and known for making people angry, and then you attack others in a fit of rage, “the drug did it” should not be an excuse at all – but neither should it be illegal for you to buy and take that drug if you choose to. It’s your decision.

    If a person knows he’s sleep-walking, it’s his responsibilty to take adequate precautions not to violate the rights of others. The remaining risk should be fully his responsibility. Rape is rape, no exceptions. However, he should have free access to suicide drugs (instead of being locked up for decades), or the right to declare himself insane before something happens (which leads to the loss of his autonomy). If he doesn’t make use of these options, the responsibility is fully his, and his alone, and it should be treated equally to the responsibility of any other rapist.

    • anon

      One problem is that “stripping people of their autonomy” is quite costly. Ideally, everyone would have the option of voluntarily entering a secure facility, where they would be incapacitated from committing most crimes. The problem is that folks would be unable to pay for their stay.

      Judges would also be allowed to order a stay in jail, but mostly for preventive reasons; punishment should be mainly restitutive, i.e. inmates would work and earn money which they would use to pay off their victims.

      Instead, because jails are so expensive, we make them much more uncomfortable than they could otherwise be, in order to bundle punishment and incapacitation functions.

  • Rob

    To conclude from this that unconscious acts should be forgiven, however, one must presume that unconscious mind harms are unplanned or are accidental side effects of other plans. Yet almost all conscious plans are first made unconsciously. So why should we presume unconscious acts are never planned?

    Baumeister & colleagues’ recent lit review bears on this.

  • Lord

    “So why should we presume unconscious acts are never planned?”

    We shouldn’t and don’t. We only presume they weren’t conscious, either intended or reckless, in a manner that allowed them to take countermeasures. It is unlikely most would have ever conceived of such an occurrence beforehand and would have been taken by surprise by it. It is a far different story if one already knew of its prior occurrence yet failed to take any measures to counter it.

    “When we punish a married person who has committed a crime, their spouse is usually punished as well.”

    No. The person that commits a crime punishes their spouse, not us for executing justice. This argument is so flimsy as to be ridiculous. “We” are punishing “ourselves” for “our” crime. “We” are entitled to do that, right? “We” did wrong and have to make it up to “ourselves”. We are not punishing their spouse; their spouse is just another of their victims.

  • What about the case of someone who has not sleepwalked in the past, or has sleepwalked and not been sexual, or has sleepwalked and never heard of sex while sleepwalking? They can’t be said to have failed in their responsibility to take precautions.

    However, this isn’t just about blame, it’s also about safety, and being raped by a sleepwalker presumably has approximately the same emotional and physical effects as being raped by someone who’s awake.

    I suggest incarceration under good conditions as a sort of quarantine. The point is to underline the importance of taking precautions– I’m not talking about a lifelong quarantine.

    And so far as imprisonment being a punishment for those related to the prisoners….. this is a time when it’s actually relevant to think of the children.

  • The whole idea of punishment is only about status. There is nothing about punishment that results in restitution and much data shows that punishment doesn’t deter many crimes. What punishment does do is lower the status of the punished person and raise the status of those in the justice system and of everyone else.

    The whole eye-for-an-eye idea of “justice” is simply to support the social power hierarchy that administers it. The “leader” gets to decide by fiat what “punishment” balances out what ever “crime” has been committed. The “leader” dispenses as much “justice” as the various stake holders bribe him to dispense.

    This man should have his status lowered. He should be forced to wear a sign that says he raped someone while sleep walking to warn potential future victims. He should be compelled to pay restitution to the victim. He is lucky she didn’t fight him off with a knife or gun.

    • Read Mark Kleiman’s “When Brute Force Fails”. Punishment that is swift and certain does deter, even hardened addicts.

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  • nikki_olson

    Study the connection between those that commit sleep rape and those that have sexual preferences that tend in their fulfillment to exploit others. I doubt we’d be surprised in finding a correlation. If there were a strong correlation we could investigate further the degree to which the former could be regarded as a cause for the later.

    A good question to ask, then, is to what extent ‘sleep rape’ is culture dependent. Present day Western society is doing a pretty good job at stigmatizing men for barbaric sexual preferences and encouraging a more egalitarian approach to things. Can’t say the same for Saudi Arabia.

    • nikki_olson

      “If there were a strong correlation we could investigate further the degree to which the former could be regarded as a cause for the later. ”

      -I mean, investigate further to what extent explicit preferences can be regarded as a cause for sleep rape. As in, what are the intervening variables.

  • JS Allen

    Nikki, I’ve seen (and heard of) people doing absolutely crazy things on Ambien, that were totally out of character for them, and have no recollection at all. It would be tempting to say that what they do when blasted on Ambien is a true indicator of what they secretly always wanted to do, but I strongly doubt it. In part, I think that the amnesia is an indicator of how out of character an action is.

    Of course, it’s unlikely that someone would somnambulistically perform an action that they had never witnessed or imagined. But anyone who has ever watched CSI already has a huge potential repertoire of imagined actions that might bubble forth when impaired.

    • nikki_olson

      Point taken. But a. ambien alters brain chemistry, and b., I would hesitate to base any knowledge of criminology on CSI.

      That said, there is far too little understood about the brain and behavior to say one way or another, a situation further hindered by all the usual hang ups regarding freewill and conditioning, and further hindered again by the limitations inherent in even a more completed ”science’ of behavior’.

      However, psychological knowledge of behavior tends to favor associations between actions (patterns) rather than strong disconnects. At best we could find strong correlations, and even then we are left with the question of whether or not one is ‘responsible’, even in the slightest, for associated and unintended consequences of holding objectifying sexual preferences, where I would (after all that) still say ‘no’, ‘not responsible’.

      Either way, a first step here is to study the correlations and see what we might find. Again, I don’t think anybody would be surprised by a correlation between holding objectifying sexual preferences and the occurrence unconscious rape.

  • Edward Spriggs

    Tyrrel McAllister, you said, “People will take precautions against a highly improbable event when the costs of the event are high enough.”

    This is an empirical statement, not an ideological one, so I hope you will join me in deferring to the people who have done the relevant research. They are essentially unanimous in their conclusion that this is not true. Humans are hilariously bad at reasoning about expected value, especially when the probability of either success or failure is very low. For example, they are overly concerned about reducing small risks to the threshold of negligibility, while ignoring much greater differential risks. A classic example of this is someone who prefers driving to flying, perhaps thinking to themselves, “if my car breaks down, it doesn’t fall out of the sky.” Driving is actually much more dangerous.

    You also said, “Punishing sleep-rape might make costs high enough so that some people on the margin, who otherwise would have sleep-raped, instead figure out and take precautions that keep them from sleep-raping.”

    This statement is more plausible than the first, but I believe it fails as well. Perhaps a few well-publicized cases of sleep-rape being punished severely will cause a small number of marginal people to take precautions that they would not have taken otherwise, thereby incrementally reducing the probability of sleep-rape. This is an empirical question and I do not propose to have an ideological answer for it, and no research has been done on it specifically that I know of. However, there are a few reasons that I do not agree.

    The first echoes my first criticism. If people do not reason well about probability in certain cases, then they are unlikely to find arguments whose conclusions impose a cost on them very persuasive, when those arguments are grounded in the application of probability to such cases. That is, the margin who are influenced as you describe is likely to be very small, and the number of sleep-rapists among them (since this is a rare phenomenon in the first place) will be even smaller. The punishment would have to be severe indeed to reach even these few, since if it’s not newsworthy when it happens, they will just not know about it in the first place (as most people do not know about most laws).

    The second follows on this somewhat. Perhaps some measure of moral culpability does attach to the typical sleep-rapist, for not having taken necessary precautions. This presumes that sleep-rapists know that they are sleep-rapists, or at least know that they are much more likely to be sleep-rapists than the general population. I suspect this is not true, and in any case you have not argued for it. However, this culpability is mitigated relative to intentional rape, in the same way that we may say a drunk driver who kills a pedestrian has committed manslaughter or negligent homicide or whatever it is in your jurisdiction, but we do not consider him culpable for the death to the degree that we would if he had planned it. Given the relatively low penalties, both probabilistically and absolutely speaking, for intentional rape, an elevated punishment for sleep-rape that would have the effect you describe (even if such were possible) would be greater in the cases where it was successfully applied. That is, in order to get the effect you’re describing, even if it were possible to do so, we would have to punish sleep-rape more harshly than we presently punish intentional rape, which is contrary both to precedent and common sense.

    And even if we make this system of punishment consistent, by raising the penalty for intentional rapes (I’m not necessarily against that), there is still the issue of how we morally justify the EXTRA punishment that must be applied to the sleep-rapist, to overcome the irrational disregard that unrelated third-party potential-sleep-rapists have for small risks. It seems like punishment theater, in the sense that we might as well have chosen a person at random, framed him as a sleep-rapist, and punished him for it. Whatever punishment the sleep-rapist deserves for sleep-raping (or more precisely, for not taking adequate precautions against sleep-raping), it seems implausible that he deserves EXTRA punishment, just for the deterrent effect we hope the extra has on others.

    Sorry for replying in this format, but for some reason there was no “reply” link next to the comment I wanted to respond to.

  • anonymous

    I experience instinctive, visceral moral revulsion at the suggestion that this man should be punished. Punishment is bad. Yes, sometimes it is a necessary evil, but it’s still an evil. It’s something we should be doing only for sound game-theoretic reasons, and not because it makes us feel good by lowering others’ status. And in a case like this it’s completely unnecessary. (I do not consider “signaling our disapproval of genuine criminal rape” — and make no mistake, that’s what’s going on here with all the enthusiasm among commenters here for punishing Mr. Luedecke, if you want to talk about signaling and hypocrisy — to be a legitimate justification for punishing someone with no criminal intent whatsoever.)

    This is simply not a common enough problem to be dealt with by law. If it were a widespread problem, you could make a case for laws that compel people to take precautions against their unconscious. As it is, however, it falls under the category of “sometimes really bad things happen to people, and there isn’t anyone whose fault it is, nor anything the government can do about it such that the benefits outweigh the costs”.

    Yes, I feel bad for the woman involved, but I do not consider punishing the man to be a morally acceptable solution. The only morally acceptable solution is to find ways to treat the disorder that the man suffers from.

    • Anonymous

      If it were a widespread problem, you could make a case for laws that compel people to take precautions against their unconscious.

      And yet another step toward the ultimate nanny state.

      I have no interest in coercing people to take precautions against their potential future actions. It’s their decision, and their problem. As far as I am concerned, you’re responsible for what your body does, unless someone else actively coerces you to do it. I would punish the man like an ordinary rapist. He can always take precautions himself, up to committing suicide, but failing that, or if it happens without precendent, the legal risk is his. The responsibility of taking care that your body doesn’t violate other people’s rights is yours. When you can’t control your own body properly, the resulting legal risk is yours. What else is there to say?

      • anonymous

        When you can’t control your own body properly, the resulting legal risk is yours

        Despite your having called it “another step toward the ultimate nanny state”, you are advocating exactly the policy I described: “laws that compel people to take precautions against their unconscious” — i.e. forcing people to assume legal responsibility for their unconscious actions.

        I am against this, because I don’t believe the problem is sufficiently common. From my point of view, the victim was injured in a freak accident. If this type of accident were common, then you could conceivably justify a legal remedy — whether explicitly requiring precautions, or punishing people after the fact (I don’t view the distinction as relevant in this context).

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  • Anonymous

    If sleep-rapists aren’t punished, what keeps non-sleep-rapists to pretend that they were sleep-raping instead of wake-raping?

    • anonymous

      “Criminalize X to prevent people accused of Y from claiming they did X” is a terrible general policy.

      • Anonymous

        Yes, but in this case you would create a burden of proof on the prosecution’s side that a perpetrator has been fully conscious while committing a crime. Is there any way to reliably distinguish sleep-rape from wake-rape if the rapist has even remotely reasonable acting skills?

      • Dan Weber

        Generic rape is also difficult to prove, since you have to show (beyond a reasonable doubt) that consent was not given.

        That said, we can distinguish between passive defenses and active defenses. That would place the burden on the defendant to prove he was asleep.

      • anonymous

        Yes, but in this case you would create a burden of proof on the prosecution’s side that a perpetrator has been fully conscious while committing a crime

        The prosecution’s side is where the burden of proof belongs. Given that I think criminality requires being fully conscious, I don’t see a problem here. Indeed, you could use that same argument in the general context: “If you don’t criminalize X, then there will be a burden of proof on the prosecution to show that the person wasn’t doing X!” Yes, that’s right.

        However, note that sleep-rape is statistically much rarer than actual rape. So attributing a rape to sleep-rape will require some specific evidence, such as the defendant having a history of somnambulation, and/or being highly unlikely to commit an actual rape, etc.

  • Anonymous This Time

    This is difficult to write.

    I know someone who was raped by someone in their sleep. I don’t like the perpetrator anyway. It would be very easy for me to say he should be punished.

    Still, I don’t feel like this simple “punish sleep rapers” captures anything meaningful. Blithe accusations of “he really must have wanted to do it” are ham-handed on their face.

    Plus there is the fact that both people were asleep when the sex was happening. Why is the man at fault and not the woman?

    • Miley Cyrax

      “Plus there is the fact that both people were asleep when the sex was happening. Why is the man at fault and not the woman?”

      Because everyone knows men are evil and expendable and women are noble and valuable.

      • Kiefer

        What? Are you really serious? They’re both asleep, but the woman was almost raped, for krist’s sake. You’re not even helping.

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  • Will

    If the victim knows they have been sleep-raped, should the victim have the option to request a ligher/no punishment?

  • Cannot be compared to a drunk person raping someone, because that person chose to get drunk. So even if they don’t remember the incident at all, it is still their fault. As humans, we need sleep, so “sleep rape”, if it does in fact exist, would not be the fault of the rapist.

  • jva

    Just a reminder – sleep-rapist is no more in control of his actions than a drunk girl consenting to sex. So you can’t put the blame on sleep-rapists and not put the blame on drunk girls at the same time.

  • Jergens

    No discussion of consent? How evil of you. I have been “raped” many times in my sleep and I loved it. That’s because sex is awesome and anyone I’m going to sleep in a bed with is someone I want to fuck. Somebody having sex with you in your sleep that you have no sexual relationship with is rape. Someone having sex with you in your sleep that you do have a sexual relationship with is fine, unless you state it is not. But any man who is with such an uptight beeyatch should go find someone who likes sleep sex, and there are many. Oh, it’s just the best thing to be woken up to that… MMmmm.

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  • Like drunks, sleepwalkers seem somewhat incapacitated, so perhaps they should be excused from crimes to a similar degree as drunks.

    They’re a lot more incapacitated than drunks. As Kahneman puts it, their System 1 is in complete control. They’re just acting on associations and incapable of executing a plan or even acting consistently with their own Immediate aggrandizement.

    But that just means sleepwalking is a bad example for the point you want to make. “Accidents” do allow motivated behavior despite the absence of conscious intention. This tolerance expresses a moralistic belief that culpability resides in acts of “free will,” but the doctrine might serve the function you note. (See my Free Will and Legal Intent: Consequences of a Myth’s Demisehttp://tinyurl.com/35d37l9)

  • Clifford H Chick

    I had 3 fingers going in and out of her,her eyes were wide open,she don’t remmber,says I raped her.I thought she was awake….